Personal Injury Category Archives — Page 2 of 3 — Lowell Personal Injury Lawyer Blog Published by Lowell, Massachusetts Personal Injury Lawyers

What is a Medical Malpractice?

Published on: March 8, 2021 | by Marcotte Law Firm LLC

It is a common phrase to say “mistakes happen,” because in all honesty, they do. No one is perfect and we all inevitably fail. However, this does not mean there are no consequences to these failures. There is no greater example of this than in the field of medicine. Patients, often at their most medically-vulnerable, rely on the opinions of their examining and treating medical professionals. But what happens when that professional makes a mistake? Are they, too, able to chalk it up to “mistakes happen” and move on? The short answer is that medical professionals owe you a higher duty of care and “mistakes” they make could very well fall under malpractice.

What is Medical Malpractice?

Generally speaking, medical malpractice is a type of negligence that occurs during the medical care and treatment provided by a healthcare professional, i.e., doctor, nurse, physician assistant, etc. In order to prove malpractice occurred, you need to prove the “Four Ds of Medical Malpractice:” 1) duty, 2) dereliction (failure to meet that duty), 3) damages, and 4) direct cause.

Snow and Ice Injuries

Published on: February 22, 2021 | by Marcotte Law Firm LLC

In Part 1, we discussed the duty owed by property owners in terms of snow and ice removal. In this post, we will discuss what happens if you are injured after slipping on ice or snow. It is important to know what steps are available to you and what, if any, fault you may have in the matter.

As noted in the previous post, it used to be much harder to recover damages from a slip and fall caused by snow and ice. A 2010 Supreme Judicial Court (“SJC”) case (Papadopoulos v. Target Corp) overturned an over-a-century-old law regarding the accumulation of snow. The duty placed on property owners was raised and it became easier to prove negligence. However, just because it became “easier,” does not mean collecting damages will be easy. There are still multiple factors at play.

All slip and fall cases fall under a class of personal injury claims requiring you to prove negligence. You must establish a duty, a failure to meet that duty, injuries, and that the breach of duty caused those injuries. In a case of snow and ice-induced slip and fall case, the duty owed is by the landowner and he or she owes you “reasonable care” for a safe walking environment, that is, free of ice and snow. Further, you must suffer a significant injury, for example, sprained or broken bones or traumatic brain injury from hitting your head. Finally, you need to establish that the ice was the cause of your slip and fall.

Snow & Ice – Landowner Responsibilities

Published on: February 8, 2021 | by Marcotte Law Firm LLC

Winter in New England, a right of passage we all endure every year. No one can claim to be a real New Englander without going through a handful of winters full of blizzards, wind, and freezing temperatures. Cleaning off your car, shoveling the sidewalks and stairs, and salting or sanding the ice are all tenets of our yearly winter ritual. While many of us are used to the cold, snow, and ice, it is important to know what happens when those conditions result in an injury. In the first part of a two-part series, we will discuss what duty you owe as a property owner to others entering your property and what happens in the event someone is injured as a result of a fall on snow or ice.

Under Massachusetts law, all property owners (commercial and residential) and landlords are legally responsible for snow and ice removal from their property. While each town and city has its own specific codes (and we encourage you to take a look at your city or town’s requirements), it is important to know the state law establishing this minimum. This means that any publicly-accessible areas, e.g., sidewalks or walkways, driveways, parking lots, etc., must be free of snow and “de-iced.”

This is a relatively new law, coming into effect on the heels of a 2010 Massachusetts Supreme Judicial Court (“SJC”) ruling that overturned 125 years of precedent of unnatural vs. natural snow accumulation. The arcane distinction aside, the takeaway is that the SJC prioritized safety of guests and visitors. (That case was Papadopoulos v. Target Corp, which dragged snow and ice law into the 21st century. It got rid of the rule that a “natural accumulation” of snow means that a property owner wasn’t responsible for someone’s injury.).

The Anatomy of a Lawsuit

Published on: November 30, 2020 | by Marcotte Law Firm LLC

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury.

If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization.

A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act. This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action.

Chapter 93A – Unfair & Deceptive Trade Practices

Published on: November 9, 2020 | by Marcotte Law Firm LLC

Massachusetts has been called many things throughout history, but at the top of that list should be “consumer friendly.” This is true even about our laws. They try to protect consumers instead of big businesses.

One example is a section of the Massachusetts’ Consumer Protection Act, specifically Section 93a, that affords broad protections to consumers from merchants engaging in “unfair and deceptive” practices. This includes sales and leases, debt collection, many contracts, foreclosure, landlord-tenant law, and even bad faith insurance claims.

If you have been subject to unfair business practices, the easiest course of action would be to simply come to an agreement with the business with which you have a conflict. However, if all disputes were that simple, there would be no need for laws protecting the rights of consumers. If you are unable to resolve a complaint with a merchant, i.e., an individual or business, informally, then you may decide to take legal action.

Massachusetts Safe Driving Law

Published on: September 16, 2020 | by Marcotte Law Firm LLC

We have all become more and more dependent on our cell phones for not only communication or entertainment, but also as an important tool for making our lives easier. Trying to get to Fenway Park from Lowell? Our phones can give us step-by-step directions, giving us the fastest route, even with traffic. We can also use our phones to reserve a parking space for when we get there. Alternatively, we can buy a train ticket on our phone and take public transportation to get there.

For all the positive our phones provide, they can also distract us from what’s going on around us. When someone is looking at their phone at the dinner table, it can be very rude. But, its unlikely that someone can get hurt. Unfortunately, that’s not necessarily true if someone is distracted by their cell phones when they’re behind the wheel.

According to the National Safety Council, cell phone use by drivers causes more than 1.6 million car crashes across the country each year. While many people associate these injuries with texting, there are many ways that people can get distracted by a cell phone. This includes everything from browsing Instagram to trying to make a phone call. However someone is using their phone, when it takes their attention from the road, it makes it more dangerous for everyone else.

Warranty of Habitability for Snow & Ice Cases – New Law

Published on: July 28, 2020 | by Marcotte Law Firm LLC

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020). The decision involves the “warranty of habitability” and the ways for tenants to recover for personal injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice.

By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury. There are circumstances, however, when the remedy is contract or semi-contract based. For example, there is a “warranty of merchantability” attached to products. They have to be fit for the purpose intended. A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory.

Similarly, the warranty of habitability assures that a rented property is fit for human occupation. If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult.

No Insurance

Published on: July 29, 2019 | by Marcotte Law Firm LLC

One of the worst situations that happens in our industry is when someone is injured, but the responsible party does not have insurance. Common examples include someone driving a stolen car and a dog owner not having homeowners or renters insurance.

Of course, you can still sue someone without insurance. But if that person does not have money to pay for your injuries, there is sometimes not much you can do.

However, all is not lost. In many circumstances, there are alternative ways to recover for your injuries. Whether it’s uninsured benefits, making claims with state agencies, or finding creative ways to make insurance apply, many times it is possible to get compensation for your injuries.

Dead Defendant

Published on: June 15, 2019 | by Marcotte Law Firm LLC

If someone causes an injury but then dies of unrelated causes, what happens to your personal injury claim? Many people don’t want to have to file a lawsuit against someone who has passed away and add another burden to his/her loved ones.

Luckily in Massachusetts, the law allows you to pursue any available insurance without having to bring a claim directly against the person who caused your injuries. This allows you to not have to deal with the estate of the potential defendant at all, and instead focus on the insurance coverage.

The only downside to this is that you’ll be limited to recovering whatever amount of insurance the person had. So, in a case with catastrophic injuries and limited insurance, this might not be the best option.

Dead Plaintiff

Published on: May 28, 2019 | by Marcotte Law Firm LLC

Attorney Michael Molloy was recently talking to an 8th grade classroom when one of the students asked an interesting question: what if someone is hurt, but then passes away from unrelated circumstances? The answer turned out to be simple.

A case is treated the same as any other asset someone leaves when they pass away. It’s transferred to the person’s estate for the benefit of his/her heirs. Just as a house, car, or bank account get transferred to beneficiaries, an accident case gets transferred in the same way.

As with anything in life, there are many complicating factors that must be considered. Most importantly, if your loved one who passed away had an injury claim, it’s important to reach out to his/her lawyer as soon as possible. The lawyer will need to discuss the process of moving the case forward, and decisions will have to be made, as almost nothing can be done until the family sets up an estate.